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West Virginia Chemical Spill: When Small Government Doesn’t Work

The answer to what happened in West Virginia lies in a complex failure of oversight and regulation that stretches from local enforcement all the way to the halls of Congress.

On Thursday, January 9, 2014 at approximately 8:15 a.m., an email was sent by a West Virginia state Department of Environmental Protection employee indicating a gentlemen had called about something in the air, coating his wife’s throat. Shortly after, two other DEP employees noticed an odor. Within a couple of hours two DEP investigators from the Kanawha County office were at the intersection of Bigley Avenue and Westmoreland Drive noticing an “objectionable” smell.

They knew something was happening at Freedom Industries.

The company is “a full-service producer of specialty chemicals for the mining, steel, and cement industries” based in Charleston, West Virginia. It doesn’t actually make any of these chemicals. It simply stores them and makes them available to the various businesses it serves.

Three hours after the initial complaint, the two DEP investigators were standing in the office of the company’s president, Dennis P. Farrell, at its Etowah River Terminal plant, located on the Elk River. They informed Mr. Farrell of the licorice-like odor and asked him if there any problems at the site. A short time later during a tour of the facility, Farrell and the two investigators found themselves watching a four foot wide clear substance slightly thicker than water disappearing out of the containment dike into the ground from a 400 square foot pool of a chemical called Crude MCHM. It had leaked from a one-inch hole in a 40,000 gallon tank.

It was the first time anyone had noticed anything had gone wrong.

Eight hours later at 4:00 p.m. the chemical had overwhelmed the West Virginia American Water Co.’s filters and could no longer stop it from entering the water supply. Within hours, 300,000 people in nine counties in West Virginia were advised to not drink, cook, or bathe with any tap water and a state of emergency had been declared.

West Virginia American Water Co. is located 1.5 miles downriver from the plant.

One week later, while the water use ban is being slowly lifted county by county, investigations are beginning and details are emerging. The biggest questions to be answered is how was this chemical able to be stored near a main water source and why has no one done anything about it before now. The answer lies in a complex failure of oversight and regulation that stretches from local enforcement all the way to the halls of Congress.

The Toxic Substances Control Act of 1976 (TSCA) authorized the Environmental Protection Agency to require “reporting, record-keeping and testing requirements, and restrictions relating to chemical substances and/or mixtures.” States make their own laws regarding these substances, including how local agencies enforce compliance. Violations can result in simple warnings and fines at the local level to actual investigations from the Environmental Protection Agency and criminal prosecution from the Department of Justice on the national level.

First, however, there have to be regulations to violate.

West Virginia is coal and chemical country. Kanawha River Valley, the location of the latest spill, is known as Chemical Valley and has a history of toxic accidents resulting in injuries and death going back nearly a century. The political landscape has reflected the interests of its industries (West Virginia is still largely dominated by democrats, though recent elections have put more republicans in office). This has led to little regulation and even less oversight.

Freedom Industries, Inc. is the latest name for a company that has had various legal formations since 1986. The only inspection of the Elk River location occurred in 1991, when it was a different kind of facility. Records show that the only permit on file for them is an industrial storm water permit. Under West Virginia law, no other permits are needed as the company is classified as a storage facility and does not manufacture any products. Furthermore, the materials it stores does not create any emissions and isn’t considered hazardous. Even though it is the DEP’s responsibility to inspect, the facility has been able to operate with no interference for nearly 20 years.

West Virginia law does not require periodic inspections.

It’s unclear when, if ever, anyone knew about the chemical being stored at the site. Crude MCHM (Methylcyclohexane for you chemistry buffs) is a chemical compound used to rinse coal. It is colorless and is most notable for a smell similar to black licorice. Exposure symptoms include eye, skin and throat irritation, or trouble breathing. Most importantly, no one really knows how dangerous it really is.

One of the things the TSCA authorized the EPA to do is the testing of industrial chemicals. The legislation was considered historic as this was the first time that this was to be done, but it also put the cost and burden of testing on to the industry itself. If the EPA says something needs to be tested, it could order a company to do it.

There was one little catch, however.

At the time of the law, there were about 60,000 chemicals that were known and being used. If the EPA wanted any of these older chemicals tested, it would have to already know that they were harmful. Yet, unless the industry had already done the studies, there was no way to know if the chemical was indeed hazardous.

Crude MCHM is one of those chemicals.

The EPA can step in when states fail to enforce obvious violations of safety regarding the environment. A 2009 New York Times investigation found that the agency’s enforcement, especially as it pertained to the Clean Water Act, was woefully lacking. At the time of the article, the EPA had spent eight years under the George W. Bush administration’s direction, which was less than supportive of environmental causes. With the election of Barack Obama, the agency has had more support from the White House, but has been held back by cuts to its budget from House Republicans.

Since the spill, which is now estimated at 7,500 gallons, West Virginia DEP ordered Freedom Industries to remove the remaining chemical from the faulty storage tank. On Wednesday, January 15, the company said it was moving it to another plant located a few miles away. That same day, DEP inspected the new location and cited it for five violations. One of those violations was the above ground storage tanks did not have an adequate secondary containment in case of a spill.

It was a lack of secondary containment at the site of the original spill that led to the current disaster.

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